General Terms of Sale
1. SCOPE
These GENERAL TERMS OF SALE apply to all orders issued to AMS Biopharma S.L.U. (hereinafter referred as AMSBIOPHARMA) and/or its Affiliates and accepted by the CLIENT and/or its Affiliates (also individually referred to as “Party” or collectively the “Parties”), for the purchase of AMSBIOPHARMA services (“the Services”), in the framework of one or different Projects.
The term “Affiliate” shall mean any entity, individual, firm, or corporation, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control of either Party.
Any equivalent provision contained in whatsoever valid agreement executed between AMSBIOPHARMA and CLIENT, such as but not limited to non-disclosure agreements, the Master Service Agreement, technical agreements, work orders or quotations, shall prevail in front of these GENERAL TERMS OF SALE.
2. CONFIDENTIALITY
For the duration of the Services and up to five (5) years after its finalization, the Parties agree that any and all information exchanged shall be treated by their directors, employees or consultants as confidential and shall not be disclosed to other parties, except for: i) information previously known by the other Party, ii) information within the public domain, iii) information required to be disclosed by law, iv) information necessary to be disclosed to the Authorities for regulatory purposes. The disclosing to third parties of the name and/or logo of the other Party with the sole purpose of mentioning it as a business commercial reference is accepted and does not fall under the confidentiality obligations provided in this clause.
3. SERVICES
AMSBIOPHARMA shall perform the Services in accordance with: i) these General Terms and any other agreement signed between the Parties, ii) any protocol approved by the Parties; iii) the applicable laws and regulations, iv) in compliance with GMP requirements when agreed between the Parties, and iv) all accepted scientific principles and practices in the scientific community.
4. TERM OF SERVICES
4.1. The quotations issued by AMSBIOPHARMA will be considered accepted by CLIENT upon reception by AMSBIOPHARMA of i) signed quotation; ii) approval letter/e-mail; iii) work order (WO), iv) purchase order (PO); or v) samples for analysis. If Client requires WO/PO number for invoicing purposes, AMSBIOPHARMA reserves the right to postpone any activities until corresponding reference is provided by the CLIENT.
4.2. Before the beginning of the Services, CLIENT shall provide to AMSBIOPHARMA any relevant and sufficient information available about the project in order to enable AMSBIOPHARMA to duly perform the Services. CLIENT shall also provide free of charge sufficient amount of samples, standards and any other specific material necessary to perform the Services by AMSBIOPHARMA, including the amount for repetitions, when necessary. Title and risk of loss of these materials will remain with CLIENT.
4.3. Services must be carried out by AMSBIOPHARMA in accordance with the correspondent order and any protocol that may have been agreed between the Parties, and shall be performed in due time. In the event that AMSBIOPHARMA becomes aware that it cannot meet the estimated timelines it shall notify to CLIENT and shall use all efforts to minimize any such delay.
4.4. In the event that the whole or any part of the Services required to be repeated, AMSBIOPHARMA shall carry out as soon as reasonably practicable at AMSBIOPHARMA’ sole cost, provided the requirement to repeat is the fault of AMSBIOPHARMA, and at the cost of CLIENT where otherwise. In the event that a dispute arises between the Parties concerning whether it is the fault of AMSBIOPHARMA, the parties may submit the dispute to an independent testing laboratory accepted by both Parties. The resolution of the laboratory shall be final and binding save in the instance of manifest material error. The cost of such laboratory test shall be borne by the Party with whose results the independent laboratory shall have disagreed.
4.5. The CLIENT accepts that due to the nature of the Services a positive and useful outcome or result is not guaranteed and declines to file any claims, demands or suits against AMSBIOPHARMA in this respect or to request, losses, damages and liabilities to AMSBIOPHARMA in connection with this matter.
5. SUBCONTRAcTING
AMSBIOPHARMA shall not be entitled to subcontract all or part of the Services to any third party without written consent of CLIENT, except if it is an Affiliate or it is stated in the Quotation or in the CLIENT’s order. The use of some equipment owned by Universities, Public Centers or Technological Centers under AMSBIOPHARMA employees’ direct operation or supervision will not be considered subcontracting.
6. AUDIT
CLIENT has the right to audit AMSBIOPHARMA facilities once a year upon a prior notice of thirty working (30) days in order to verify compliance with the regulations and obligations assumed. Furthermore, AMSBIOPHARMA shall accept any mandatory audit conducted by the competent Authorities regarding the Services contracted by CLIENT.
7. RESULTS AND INVENTIONS
Any and all results and/or inventions, with the exception of innovations made by AMSBIOPHARMA in analytical methods, procedures or similar, whether patentable or not, arising or resulting from the services performed shall be and remain the sole and exclusive property of CLIENT.
8. INDEMNITY
Any Party shall indemnify, defend and hold harmless the other Party against any legal liability, loss, damage, costs or expenses, including reasonable attorney fees, resulting from a negligent act, willful misconduct, omission or breach of the provisions of these GENERAL TERMS OF SALE by such Party. However, in no event shall AMSBIOPHARMA aggregate liability arising out of or related to these GENERAL TERMS OF SALE exceed two (2) times the CLIENT’s fee for the corresponding Services.
CLIENT shall indemnify, defend and hold harmless AMSBIOPHARMA from any claim made by a third party alleging an infringement, misappropriation or misuse of patents, trade secrets or other intellectual property rights regarding products, samples, know-how and procedures.
9. INSURANCE
During the duration of Services both Parties shall maintain in force suitable insurance policies covering general, civil and professional liabilities.
10. PRICES AND PAYMENT TERMS
10.1. CLIENT shall pay AMSBIOPHARMA for the Services in accordance with the prices and terms set out in the relevant quotations for each Project. All amounts shall be payable within thirty (30) days and AMSBIOPHARMA can apply the corresponding interests to overdue amounts without justified reasons.
10.2. If any portion of an invoice is disputed, CLIENT shall pay the undisputed amount without any delay. Both Parties shall use good faith efforts to reconcile differences or discrepancies in the shortest possible time. Any delay by CLIENT of more than seven (7) days to meet payment dates to AMSBIOPHARMA will bear an interest on arrears equal to 8 percentage points above the reference interest rate of the European Central Bank (ECB).
10.3. AMSBIOPHARMA could review the prices if there are justified and objective reasons, including but not limited to additional testing not included in the work order, new requirements included in the protocol or increasing complexity of the project not foreseen at quotation time. In such circumstances AMSBIOPHARMA shall provide a price review to CLIENT and both Parties will discuss it in good faith in order to find an understanding. If it is not possible to reach an agreement in a period of fifteen (15) days, any of the Parties will have the right to terminate the services, provided that AMSBIOPHARMA will transfer all the information necessary to allow CLIENT continue the project at the stage where it was ended and CLIENT will immediately pay to AMSBIOPHARMA all the outstanding amounts related to the Services rendered until the termination date which have not been invoiced yet.
11. SAMPLE STORAGE AND ARCHIVING
11.1. AMSBIOPHARMA shall store or shall arrange to be stored by any authorized sub-contractor, following upon completion of the Services, all data, information, results, and other relevant documentation relating to the Services. CLIENT can be charged at archiving AMSBIOPHARMA fees after the completion of the Services.
11.2. AMSBIOPHARMA shall store at the specific conditions indicated by CLIENT the samples and standards received. CLIENT will be charged for sample storage services when indicated in the work order and will be charged at sample storage AMSBIOPHARMA´s fees for the unused or remaining amounts of samples after the completion of its Services.
11.3. At any time, CLIENT shall request any document or sample to AMSBIOPHARMA, at CLIENT’s charge, i) to be properly destroyed, (ii) to be promptly returned to CLIENT, unless AMSBIOPHARMA shall be required to maintain documents or samples to enable it to comply with any relevant regulations.
12. TERMINATION
12.1. Either Party shall be entitled to terminate this agreement by written notice to the other Party in the event that: i) the other Party materially breaches any of the provisions of this General Terms or any other agreement between the Parties and such breach is material and not remedied within thirty (30) days upon a receipt of a written notice being given by the non-defaulting Party requiring any such breach to be remedied, ii) the other Party ceases for any reason to carry on business or enters into liquidation.
12.2. CLIENT has the right to cancel any approved work order at any time if there is a justified reason. In such a case AMSBIOPHARMA will cease the works in progress within five (5) working days and charge to CLIENT all the costs and expenses undertaken and the costs of all the economical commitments with third parties that cannot be canceled or are not refundable. However, the initial payment made at the work’s order confirmation shall be considered as non-refundable.
13. FORCE MAJEURE
Neither Party shall be responsible for delay, non-delivery, default, loss, costs, claims or non-performance in whole or in part if occasioned by strikes, war, riot, revolution, terrorism, embargoes, fires, floods, droughts, accidents, lockouts, breakdown of machinery, stoppage of labor, government prohibition or other causes beyond any Party, provided always that the concerned Party shall promptly notify the other Party and shall use all reasonable endeavors to remedy, remove or mitigate the cause and effects of such an event. If an event of force majeure prevents one of the Parties from performing its obligations hereunder for more than 3 months, the other Party shall be entitled to terminate this Agreement.
14. CONTINUING OBLIGATIONS
On the termination of the Services for any reason, the accrued rights, obligations and remedies of the Parties under these General Terms shall not be affected and those provisions which are intended to continue or come into effect shall do so notwithstanding termination.
15. ASSIGNATION
Except to an Affiliate and upon prior notice to the other Party, neither AMSBIOPHARMA nor CLIENT may assign any agreement or credit without the consent of the other Party.
16. NON-SOLICITATION
16.1 Both Parties agree that as long as the Agreement remains in force and for a period of one (1) year after its termination, none of the Parties will not divert any existing business of the other Party and/or its Affiliates or any customers or suppliers of that Party and/or its Affiliates to any other person, entity or competitor and will not in any way interfere with the relationship between any customer, supplier, or other business entity of the other Party.
16.2 Both Parties agree that as long as the Agreement remains in force and for a period of one (1) year after its termination, none of the Parties will not entice away or attempt to induce, directly or indirectly, any person to leave his or her employment with the other Party and will not interfere with the relationships between the other Party’s agents, officers, consultants, partners, joint venturers or shareholders, provided, however, that a general advertisement to which an employee of the other Party responds shall in no event be deemed to result in a breach of this Clause.
17. SEVERABILITY
If any term or provision of General Terms shall be held invalid or unenforceable, the remaining terms shall not be affected but shall be valid and enforceable to the fullest extent permitted by law.
18. INDEPENDENT CONTRACTORS
The Parties are independent contractors and under no circumstances shall either Party, its employees or representatives be deemed to be agents, employees, representatives or joint venture partners of the other party. Neither party shall have the right to enter into contracts or commitments in the name of or on behalf of the other in any respect whatsoever.
19. DATA PROTECTION
Under the provisions of Regulation (EU) 2016/679 of April 27, 2016 and the LSSICE 34/2002 of 11 July, the Information Society and Electronic Commerce, AMSBIOPHARMA will incorporate the CLIENT personal data included therein together with those obtained while any agreement between the Parties is in force to a file created under its responsibility, in order to carry out the management of this contractual relationship and also for the sending of commercial information by electronic or postal means. Said treatment will respond to the following purposes and will have as legal basis the sending of commercial and promotional communications and the management of the contractual relationship with THE CLIENT. At any time, the CLIENT as owner of the data may exercise its rights of data access, rectification, erasure, restriction of processing, object to processing and automated decision-making and the right to data portability by writing to the address indicated under Clause 19 above. We remind you of your right to file a claim with the Spanish Agency for Data Protection in those cases in which you consider there is a violation of the applicable data protection regulations, by writing to such Agency C / Jorge Juan, number 6, 28001 – Madrid or through the web www.agpd.es.
20. NOTICES
Any notice, request, demand, consent or other communication required or permitted shall be in writing and effectively given if delivered personally, transmitted by certified fax or sent by registered mail. The designated address for AMSBIOPHARMA S.L.U and/or its Affiliates to the attention of General Management is as follows: Rúa do Vidro 117D, Parcelas 3-6, 27003 Lugo (Spain) E-mail legal@amsbiopharma.com
21. GOVERNING LAW AND JURISDICTION
All disputes arising in connection with these General Terms, which cannot be settled amicably, shall be exclusively settled by the courts of Lugo in accordance with the laws of Spain without giving effect to the principles of conflicts of law thereof.